December 6, 1995
Honorable Newt Gingrich
Speaker
House of Representatives
2428 Rayburn House Office Building
Washington, D.C. 20515
Honorable Richard A. Gephardt
Minority Leader
House of Representatives
1226 Longworth House Office Building
Washington, D.C. 20515-2503
Subject: Expansion of Federal Law Enforcement Authority
Pending Counter-Terrorism Legislation
Dear Speaker Gingrich and Minority Leader Gephardt:
We represent a diverse group of organizations. We are united,
however, in our profound objections to a number of provisions of the
Comprehensive Antiterrorism Act of 1995 (H.R. 1710) that would work a
substantial expansion of federal law enforcement powers. We are also
deeply concerned about similar provisions in other pending
counter-terrorism bills and proposals, including the Omnibus
Counter-Terrorism Act of 1995 (H.R. 896) and the Antiterrorism Amendments
Act of 1995 (H.R. 1635), introduced at the request of the Clinton
Administration, and any bill with comparable provisions, including the
Senate's "Comprehensive Terrorism Prevention Act of 1995" (S. 735). Our
comments also apply to any comparable provisions under discussion for the
proposed substitute for H.R. 1710.
Concerns and Necessary Changes
We set forth below a description of the provisions to which we
strongly object in any counter-terrorism measure because they violate
civil liberties and raise other constitutional concerns. We strongly
believe that Congress, in conjunction with the consideration of any
counter-terrorism bill, should adopt the reforms and accountability
mechanisms many of us have previously outlined to the Congress regarding
federal law enforcement. To do otherwise invites the potential for even
more abuses than those to which our groups have objected before. We also
note that many of us strongly object to other provisions of the
anti-terrorism proposals not mentioned here.
I Depriving People of Liberty Based on Secret Evidence
Whether in a criminal proceeding or in a deportation proceeding,
people have the right to see the evidence against them offered by the
government. This right to confront evidence is a necessary safeguard and a
fundamental prerequisite to a fair proceeding. It is what the Constitution
requires. To convict or deport individuals based on evidence kept secret
from them because it is "classified" deprives them of a liberty interest
in violation of their most basic due process rights.
We are concerned that allowing classified information to be used to
deport individuals will be a stepping-stone to a corresponding exception
in the criminal code based on "national security" concerns. It would not
be the first time that a provision of the immigration code was borrowed
for use in a bill that would amend the criminal code: the definition of
"domestic terrorism" in the Judiciary Committee's version of this very
bill, the Comprehensive Antiterrorism Act of 1995, was borrowed directly
from the Immigration and Nationality Act.
In any counter-terrorism proposal, there should be no proceeding
allowing the use of secret evidence. The nation has survived for 200 years
without requiring secret evidence in criminal trials or deportation
proceedings. If legislation is needed, procedures improving upon
protections in the Classified Information Procedures Act (CIPA) could be
adopted to deal with classified information in a deportation case. Only
evidence given to the individuale.g., the summary of the classified
information should be the basis of any deportation order. Such a summary,
as even in CIPA, would identify the person offering the information so
that the person can be cross-examined.
II. Designating Disfavored Groups "Terrorist" Organizations
The Comprehensive Antiterrorism Act of 1995 gives the Executive
Branch the power to label foreign organizations as "terrorist" groups.
This provision in pending legislation should be deleted. If necessary,
Congress could instead consider expanding the list of criminal activity
for which 18 U.S.C. section 2339A makes it a crime to provide material
support, but only to the extent consistent with the principles we have
outlined. Likewise, the statutory bar on FBI investigations of protected
First Amendment activity, and investigation of people or groups absent
evidence that they have or will engage in the violation of federal
criminal law, should be retained.
The attachment of the label "terrorist" to a group would make it a
crime to support the legal, often charitable, activities of the group. In
fact, even the provision of goods that do not have a "dual purpose" (other
than medicine and religious materials)such as giving children's clothing
to an orphanage operated by a designated groupwould be deemed illegal. It
is a fundamental, well- established law that people in the United States
have a First Amendment right to support the legal activities of any group
they choose to support. Under current law, it is already a crime to
provide material support for certain illegal activity associated with
terrorism. 18 U.S.C. section 2339A.
Additionally, because this proposed provision does not define the
term "foreign," the Executive Branch might assert the power to designate
as "terrorist" organizations groups based abroad that have branches in the
United States and have as members a substantial number of American
citizens. Provisions for judicial review in pending legislation do not
adequately prevent abuse because secret evidence could provide the basis
of the designation and because courts traditionally defer to Executive
Branch determinations in this area. A decision to bar a person from the
United States should not be based on their associations with others.
Absent some other compelling circumstances, mere membership in a group,
including groups labeled "terrorist," should not be a bar for admission to
the United States. Instead, such a decision should be based on whether the
person knowingly engaged in prohibited activities. The only exception to
this rule is when a group comes together for the sole purpose of engaging
in criminal activity and is small enough and focused enough that
membership denotes knowing participation in the criminal enterprise.
Otherwise, people who do not support the illegal or violent activities of
the group would be barred. This amounts to guilt by association which is
an anathema to American values.
III. Privacy and Investigations Without Evidence of Criminality
We reject the proposition that law enforcement can investigate people
in the United States and compel disclosure of private informationabsent
a reasonable indication of criminal activity. The Fourth Amendment
requirement of probable cause of a crime is a bedrock principle of the
American system of justice. Unless the government can demonstrate that it
has a criminal predicate evidenced by a court order or a grand jury
subpoenathe government should not be given access to sensitive or private
information about individuals even if that information is maintained by
third parties. Provisions which would require disclosure of travel, credit
and phone records in counter-intelligence investigations should be deleted
from the pending legislation.
IV. Wiretapping and The Exclusionary Rule
Wiretapping is an extremely invasive investigatory technique.
Congress included safeguards in the present statutory scheme for law
enforcement wiretaps that, however inadequate, include specific
requirements, explicit oversight, and checks and balances to reduce
violation of privacy and Fourth Amendment rights that necessarily attend
to law enforcement wiretaps. See, 18 U.S.C. sections 2510-2522.
Wiretapping provisions in the various proposed antiterrorism acts signal a
disturbing retreat from this protection, especially in light of the fact
that too many innocent conversations are already picked up in law
enforcement wiretaps. Therefore, provisions that would expand law
enforcement wiretapping powers and courtroom use of conversations
illegally intercepted in a wiretap should be struck from any proposed
bill. Digital telephony funding should not be considered within the
context of the counter-terrorism bill.
V. Posse Comitatus Act
As a general rule, the military should not be further involved in
civilian law enforcement. The bill should contain no expansion of military
involvement in civilian law enforcement. Some have suggested there may be
true emergency situations involving chemical and biological weapons of
mass destruction when carefully limited technical and logistical
assistance for enforcement is required, and may be permissible under the
following criteria:
(i) military assistance is critically necessary;
(ii) it is required immediately;
(iii) the assistance is sought to prevent an immediate potential
catastrophe;
(iv) civilian law enforcement is not capable of preventing the
catastrophe;
(v) the assistance is lirnited to true technical and logistical support;
(vi) the assistance is provided subject to the direction and supervision
of civilian law enforcement;
(vii) the assistance does not include military intelligence activities
directed at civilians, or the authority to investigate or arrest; and
(viii)the assistance is provided for a definite, short time period subject
to re-certification of critical need.
Any proposed exception to the rule that the military should not be
further involved in civilian law enforcement must at least meet the
standards set forth above. None of the pending legislation meets these
criteria.
VI. New Definition of Domestic Terrorism
Some anti-terrorism measures so broadly define domestic terrorism as
to be an unacceptable expansion of federal law enforcement authority.
Under one proposal, the following unlawful acts would become "terrorism"
under federal law: any crime of passion involving a gun; cutting the brake
cable of a parked bicycle with intent to injure the rider or "hijacking"
the bicycle; using a gun to cause "substantial darnage" to a highway sign,
or even shooting at the sign and missing or merely planning with one's
friends to shoot at the highway sign. Though no criminal penalties are
directly attached to the definition ofterrorism, the definition has
several indirect but important consequences. Conviction for federal
felonies that involve "terrorism" are punished more severely under the
Federal Sentencing Guidelines. Moreover, one bill would give the FBI the
authority to obtain a wiretap without a prior court order to investigate
the crimes that fall within the new definition.
This definition of terrorism is far too broad. One of the indirect
consequences of such a broad definition would be the federalization of
much state criminal law, as well as increasing the amount of politically
motivated selective enforcement that would inevitably occur.
Rather than attempt to define "terrorism," we suggest that Congress
focus on defining the activity that constitutes a "crime." No new laws may
be necessary because virtually all violent activity commonly associated
with terrorism is already a crime.
CONCLUSION
During the Waco and Ruby Ridge hearings, we saw the problems that
have arisen in how federal law enforcement is using the vast authority it
already has. The American people have a right to expect the highest
standards of conduct on the part of federal law enforcement officers. Most
of them conduct themselves in such a manner and are worthy of our best
support. For those who do not, and for agencies which overstep the
boundaries of responsible enforcement, there need to be means of
independent redress of such misconduct that will come swiftly and
equitably, and with a degree of certainty to restore public respect for
and trust in those agencies and their programs.
We urge members of Congress to heed the objections we have raised to
the pending anti-terrorism legislation. These provisions would work an
unwarranted expansion of federal law enforcement powers. The bills as
presently proposed fail to ensure that individual liberty and privacy
interests are not violated. No counter-terrorism bill should be passed
unless it addresses the concerns we have raised here.
Sincerely,
Laura W. Murphy, Director
Washington National Office
American Civil Liberties Union
Tanya Metaksa, Executive Director
National Rifle Association
Institute for Legislative Action
Malcolm Wallop,
Chairman
Frontiers of Freedom
Edward H. Crane,
President and CEO*
Cato Institute*
*For identification purposes only.
Gerald H. Goldstein, Immediate Past
President & Legislative Committee Chair
National Association of Criminal Defense
Lawyers
John M. Snyder,
Public Affairs Director
Citizens Committee for the Right to Keep and
Bear Arms
William B. Moffitt,
Treasurer
National Association of Criminal Defense
Lawyers
Larry Pratt,
Director of Government Affairs
Gun Owners of America
Nancy Ross,
Partner
Ross and Green
Mark Gissiner, President
International Association for Civilian
Oversight of Law Enforcement
James X. Dempsey,
Deputy Director
Center for National Security Studies
Conrad Martin,
Executive Director
Fund for Constitutional Government
Leslie J. Seymour,
National Chairperson
National Black Police Association
Abdurahman Alamoudi,
Executive Director
American Muslim Council
David C. Condliffe,
Executive Director
The Drug Policy Foundation
Mark Rotenberg,
Director
Electronic Privacy Information Center
Eric E. Sterling,
President
The Criminal Justice Policy Foundation
Hamzi K. Moghrabi,
Chairman
American Arab Anti-Discrimination
Committee
Joseph P. Tartaro,
President
Second Amendment Foundation
James Zogby,
President
Arab American Institute
Evan Hendricks,
Chairman
US Privacy Council
Simon Davies,
Director General
Privacy International
James J. Fotis,
Executive Director
Law Enforcement Alliance of America, Inc.
Sean McManus,
President
Irish National Caucus
Frank Wilkinson,
Executive Director Emeritus
National Committee Against Repressive Legislation
Davies O'Kennedy,
National President
Irish American Unity Conference
Ned Stowe,
Legislative Secretary
Friends Committee on National Legislation
ENCLOSURE